[Heera Lal v. Smt. Tijiabai (since deceased) by L/ Rs, AIR 2012 (NOC) 189 (M.P)]
One Dwarka Prasad and plaintiffs Smt. Tijiabai and Smt. Dipiyabai were born out of the wedlock from the first wife of Ramratan. From the second wife of Ramratan the defendant No. 1 Heera Lal (step brother) was born, the defendant No. 2 Vinod Kumar is the son of defendant No. 1 Heera Lal.
The suit of the plaintiffs which was filed long back on 5-12-1985 is that the suit property was owned by Dwarka Prasad who had died in the year 1938 and after his death his widow Kalawati possessed the suit property and on coming into force of the Hindu Succession Act, 1956 Kalawati became the absolute owner. No child was born out of wedlock of Dwarka and Kalawati and after the death of Kalawati, the plaintiffs who are the sisters of Dwarka Prasad became Bhumiswami of the suit property because the property in dispute devolved on them. Further, it had been pleaded by the plaintiffs that the defendant Heeralal was making yearly payment of the agricultural produce, but the same had been stopped by him with effect from 1978. Thereafter the plaintiffs submitted necessary application to get their names mutated in the Revenue record to which the objections were submitted by the defendants 1 and 2. However, the Revenue Court directed to mutate the names of plaintiffs in the Revenue record which was assailed by defendants by filing appeal, but it was also dismissed. Hence a suit for possession had been filed by the plaintiffs.
The Court observed that the disputed property fell in the share of Dwarka Prasad in the family partition which took place during lifetime of their father Ramratan. Thus, Dwarka Prasad was the sole owner of the suit property till he died in the year 1938.
The plaintiffs are the real sisters of Dwarka Prasad and the defendant No. 1 Heera Lal is his step-brother. Since admittedly Kalawati (widow of Dwarka Prasad) having died leaving behind no issue, according to section 16 of the Act of 1956, her right would devolve under Rule 1 among the heirs specified in s.s (1) of section 15. Since Kalawati and Dwarka Prasad did not have any sons, daughters including children of any predeced son or daughter and Dwarka Prasad already having died during the lifetime of Kalawati, the right in the disputed property would devolve in the heirs according to Rule 2 of section 16. But, in the present case there is no heir in terms of Rule 2, hence the devolution of property would take place in accordance to Rule 3 of section 16. According to this rule, the property of the intestate female Hindu would devolve upon the heirs referred to in clauses (b), (d) and (e) of s.s (1) and s.s (2) of section 15 of the Act of 1956, which shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s, as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.
The property in dispute was of Dwarka Prasad and Kalawati inherited the disputed property from her husband and since there is no heir of Kalawati mentioned in the category 15(1)(a) of the Act of 1956, the property would devolve upon the heirs of her husband. If section 16(3) and section 15(1) (b) and class II of the Schedule to section 8 are kept in juxtaposition to each other and are read conjointly on the touchstone and anvil of the settled position of the law, the plaintiffs being the real sisters of Dwarka Prasad, the entire property in dispute of Kalawati would devolve on them.
It is true that the defendant No. 1 Heera Lal is the step-brother of Kalawati’s husband Dwarka Prasad but he is half blood brother of plaintiffs. Section 18 of the Act of 1956 provides that the heir of full blood have preferential right over half blood. According to this section the heirs related to an intestate by full blood shall be preferred to heir related by half blood, if the nature of relationship is the same in every other respect and therefore the plaintiffs being the real sisters of Dwarka Prasad have preferential right over the defendant No. 1 Heera Lal who is the heir related by half blood of Dwarka Prasad.
